ISSUES RELATING TO CONTRACT TERMINATION IN 2012
by Attorney Jonathan Sauer
It bears no repeating that times are hard out there right now. The day after the 2012 presidential election, the Dow Jones lost 313 points within one day and about 400 points in two days. As this is being written, the country is facing the financial cliff of automatic budget cuts and tax increases facing this country this upcoming New Year's Day, which, those in the know, say will lead to another recession. Which actions could very well prove to be absolutely catastrophic. With construction still mired in the last recession, one wonders what this might mean. It probably wouldn't be something good.
But, contract termination is not just a Great Recession issue. It has always been an issue facing subcontractors and general contractors even in the best of times. The purpose of this article is to address some issues related to termination and offer some strategies to assist in avoiding termination, possibly, minimizing its adverse effects. While there might be some technical differences between the concept of a 'default' and the concept of a 'termination', for the purposes of this article, we will be treating these two ideas as being essentially the same thing.
Also, while most of this article is equally applicable to both subcontractors and general contractors, we'll primarily be discussing general contractor terminations for ease of discussion.
Also, Massachusetts law will be the applicable law for these discussions.
II. What does contract termination mean?
What it isn't is a statement that your contract somehow has been cancelled. From a legal standpoint, a contract is a kind of eternal thing: contracts last forever. The only things that really close-out or cancel a contract are principally the three things which follow:
A. First, failing to sue on a contract claim within the time limits required under an applicable statute of limitations. (Typical periods for this are either six years - unsealed contracts - or twenty years - sealed contracts. Contracts for the sale of goods under the Uniform Commercial Code have different requirements.)
B. Secondly, failing to sue on a contract to meet the requirements of a statute of repose. (A statute of limitations is a 'conditional' bar to litigation - it can be waived. A statute of repose is a maximum period one has to sue on a contract after which no legal actions are thereafter possible because the cause of action has been extinguished.)
C. Thirdly, parties through the use of releases or settlement agreements have decided to extinguish or conclude their rights under outstanding contracts.
What a contract termination means is that one party to a contract declares as to the other party to the contract that the other party's rights to continue to perform under the contract are being withdrawn. Typically, but not exclusively, this is a 'downstream' activity. Namely, typically, an owner terminates a general contractor's further rights to proceed and a general contractor terminates a subcontractor's further rights to proceed. All other rights under the contract are fully preserved and unaffected because the actual existence and content of the contract are still there in all other regards. Simply, because of the act of termination, one party cannot further proceed in working on its contract.
Reduced to its minimums, the only thing that really happens is that the 'right to further proceed' has been cancelled. Now, whether such an action is legitimate or proper is something to be decided down the road by a judge or by an arbitrator. With most construction litigations taking three years or more to reach trial in the superior court, this is a slow, cumbersome and expensive process which might prove to be, unfortunately, irrelevant when such a stage has been reached. (It is of little value to bail out the Titanic once it has sunk.)
III. What are the negative ramifications of a contract termination?
1. Loss of income.
As a practical matter, once there has been a termination, your contracting party will not be paying you until, at minimum, its costs of procuring the completion of your work have been incurred. It is axiomatic that no one is likely able to complete the performance of your work as cheaply as you can mid-stream. After all, you understand the job. You estimated it. And, you have probably experienced the positive effects of having the learning curve, as you have performed it. Also, you know where all of the 'dead bodies' are buried, in terms of understanding whatever mistakes you have made and whatever mistakes the owner and its architect have made.
And, a completing contractor is usually going to come in high for completion costs for two reasons. First of all, if it is being asked to assume warranty obligations for all aspects of your work - as well as for its own work - it is going to include some cushion for those aspects of your work which cannot be immediately assessed. For example, if there are plumbing and HVAC and electrical lines in the walls or in or under the slabs, there is no cost-effective way of verifying that this work has been done appropriately or, for that matter, even doneat all. These can't generally be verified for bidding purposes and a smarter completion contract will allow some funds to cover the cost of corrective work or performance of work that has been represented as having being done but which has not been done or has not been done completely or in a satisfactory way. Secondly, whether the party requesting completion has a bond on your company or is simply paying on its own nickel - really, your own nickel - the potential completion contractor knows your contracting party is in a jam and is, in all likelihood, more focused on the additional time necessary for the completion of the work and/or in making sure the work is performed properly than it is as to issues relative to the cost of completion. Your contracting party may be facing the prospect of liquidated damages or consequential damages and, to the extent the issues surrounding your termination have extended the job, this is worrisome for your contracting party. As to the owner, the general contractor is liable to the owner for all defects in performance, including delays, of its subcontractors, as it is responsible for the entire work as a matter of contract and as a matter of law.
2. Involvement of your bonding company.
This would only apply, generally speaking, to your being bonded on the contract in question. Having your bonding company involved in a claims situation has several potential negative consequences. A key to understanding some of these issues is to be sure you understand exactly what a bond is. A standard definition it that a bond is as an extension of unsecured credit. This sounds a great deal like a banking function, doesn't it? That is because it is.
And, we all know what happens when one has a loan where the borrower can't or won't make the payments. If the loan is for a house, sooner or later, the bank takes the house. If it is for a car, sooner or later, the bank takes the car. The business parallels to bonds are similar and equally disturbing.
Let's define some terms. A 'GIA' is a general indemnity agreement that the vast majority of construction companies (and their owners) execute prior to getting bonding. And, some surety lingo would be useful. A 'principal' is similar to an 'insured' on an insurance policy. An 'obligee' is similar to the beneficiary of an insurance policy. A 'surety' is similar to the insurance company with regard to an insurance policy. A claimant is one having a claim or potential claim against your payment or performance bond (or, possibly, against your bid bond.) And, although this is beyond the scope of this article, it is important to understand that for some good and substantial contractual and legal reasons, a surety bond and an insurance policy are two completely different products. (For those who might be curious, there are several articles on the website - www.sauerconstructionlaw.com - which discuss these issues in greater detail.)
I could probably give you a great many reasons why being 'in claim' isn't a good thing. (Some say that I should be a California lawyer, as California claims to be the nation's biggest milk and cheese producer and, for better or worse, I can write until the cows come home!) For the purposes of this article, we'll limit this to eight reasons. (If I ever have to discuss such a situation with you, I'm sure I could get it up to a baker's dozen!)
First of all, you will not be able to control, in the main, what actions your bonding company takes or doesn't take. A bonding company is, along with its principal, 'jointly and severally' liable on its bonds. This means that if, for example, your company files bankruptcy, this ordinarily does not affect your surety's obligations in any way to appropriate claimants. Sauer & Sauer has recently collected one and one-half million dollars from the sureties of a major bankrupt general contractor on several consolidated payment bond claims four years after bankruptcy was filed. Most GIA's specifically give the surety exclusive authority to make claims decisions, meaning, that it might settle a claim you might wish to contest and/or it might settle a claim in an amount that you won't agree with. In the past several years, I was involved in a situation where a surety paid on a payment bond suit between forty and fifty thousand dollars more than the principal valued the claim. My sense is that the principal was more right than was the surety but an opinion, like some other things, is something we all have at least one of.
In such situations, principals (companies for whom the bond is issued, the 'insured', if you will) claim or try to claim in indemnity actions that the surety settled such claims in 'bad faith' and, therefore, that the principal - and its individual indemnitors - are not liable to indemnify the bonding company either entirely or partially. (Most GIA's specifically state that the principal (and its individual indemnitors) will indemnify - pay back - to the surety all of the 'loss' payments - monies paid to claimants by the surety - and 'expense' payments – monies the surety pays to its own lawyers, engineers, accountants who are involved with the settlement of claims and the pursuit of indemnity rights.) These obligations are irrespective of your company's individual fault. If, for example, a claim was made against your company that was entirely frivolous, you still have such obligations. It's a kind of 'no fault' obligation. Irrespective of whatever happens and why it happens. In some situations, such principals and individual indemnitors may claim that the surety acted in 'bad faith' and that, therefore, the surety has either waived indemnity or should be estopped (prevented) from enforcing its indemnity rights.
Unfortunately for principals, Massachusetts law in the past has not been favorable to principals and indemnitors with regard to claimed bad faith issues. As stated in the case of Hartford Accident and Indemnity Company v. Millis Roofing and Sheet Metal, Inc. 11 Mass. App. Ct. 998,999-1000, 418 N.E.2d 645 (1981): "Want of good faith involves more than bad judgment, negligence or insufficient zeal. It carries an implication of a dishonest purpose, conscious doing of wrong, or breach of duty through motive of self-interest or ill will."
Here's a reference to one of my reported cases being Transamerica Premier Ins. Co. v. Electro Maintenance and Service Corp., 1 Mass.L.Rptr. 639, 1994 WL 879652 (Mass.Super.,1994). This was an action for indemnity, which was successful for the surety at the summary judgment stage with regard to an indemnity claim. One of the individual indemnitors said he had never actually read the indemnity agreement and that the terms of the agreement had been explained to him inaccurately. The claim was, then, that for these reasons, the surety should not be able to recover against this individual indemnitor. This argument was not successful:
"In order to raise an issue of bad faith by a surety in settling an obligee's claims against a principal, the principal must show "more than bad judgment, negligence or insufficient zeal." Hartford Acc. & Indem. Co. v. Millis Roofing & Sheet Metal, Inc., 11 Mass.App.Ct. 998, 999 (1981). "Want of good faith ... carries an implication of a dishonest purpose, conscious doing of wrong, or breach of duty through motive of self-interest or ill will." Id. at 999-1000; see American Employer's Ins. Co. v. Horton, 35 Mass.App.Ct. 921, 921 (1993). In Hartford, the court relied upon the broad language of the indemnity agreement which purported "to provide comprehensive reimbursement to the bonding company of money expended by it in connection with claims" against the principal. As in the present case, the agreement in Hartford stated that proof of payment to the obligee was prima facie evidence of the indemnitor's liability to the surety. Hartford, 11 Mass.App.Ct. at 999. The court in Hartford held that the defendants' belief that the bond company had not used good faith in investigating and defending the claims against the principal was insufficient to raise a genuine issue of bad faith."
This is an extremely difficult standard for any particular principal or for any particular individual indemnitor to meet. 'Bad judgment'? Not sufficient. 'Negligence'? Not sufficient.
'Insufficient zeal'? (As to the investigation and handling of the claim). Not sufficient.
'Dishonest purpose?' Not relevant. 'Conscious doing or wrong?' Since a bonding company has liability itself completely apart from the principal's liability on its payment and performance bonds, this is very unlikely to happen. The fact that Massachusetts defines as a unfair insurance claims settlement practice a failure to pay a claim in which liability is reasonably clear means that insurance companies - and, for these purposes, sureties - cannot without potential negative consequences - a possibility of having to pay double or triple damages, even losing their ability to write bonds in Massachusetts - bury their heads in the sand and hope for the best.
'Breach of duty through motive of self-interest or ill will' is illogical to the point of being goofy. In thirty-six years of doing construction law work, I have never seen a situation where I felt I could prove 'dishonest purpose, conscious doing of wrong or breach of duty through motive of self-interest or ill will.' After all, since sureties earn most of their income by investing premium income - rather than from simply the receipt of the premium income itself - having to pay a payment bond claim or a performance bond claim can hardly be seen as being in its own self-interest. And, the idea of 'ill will' is almost unimaginable. With most sureties handling claims regionally or nationally, your name to them is just that: a name. Very rarely will even bond underwriters know that much about you. And, to this writer, 'ill will' means having a specific negative attitude towards you before claims decisions are made. Since the surety knows very little about you prior to your going into claim, the predicate for 'ill will' simply isn't there.
What all of this means is that essentially almost everything that a surety might do will most likely be rubber-stamped by a Massachusetts court. After all, if you buy a car and don't make the payments, they'll take the car away. If you buy a house and don't make the payments, they'll take the house away. And, if you request a surety to execute contract bonds on your behalf and these result in claims, it is an infrequent situation where good things for you will happen.
Secondly, one has to read very carefully the general indemnity agreement. If you did not read it before you signed it, please read it carefully now before you make any decisions that might be impacted by the terms of the GIA. In some of them, you may have agreed - in advance - that the surety can take a 'confession of judgment' against you in some court action which it might file for indemnity in some distant state. What this simply means is that you have agreed - in advance - that if the surety has incurred loss and expense payments on your account, it can sue you in a court of its choosing in a location of its choosing - usually, somewhere it would take you a few days to drive to - and then, they can simply sign your name to an agreement for judgment acknowledging that you accept liability and the amount of the surety's claim, even though you may not have even been served with notice of the action! Huh! I thought we lived in America!
Does this sound right? I don't think so. But, some jurisdictions will enforce such actions.
Massachusetts has a statute which would not be in favor of confessions of judgments. MGL, Chapter 231, s. 13A. Invalidity of stipulation waiving service of process or authorizing confession of judgment; vacation of judgment, provides:
"Any judgment entered in an action upon a contract, promissory note or other instrument in which or in a memorandum or writing relating to which is contained a stipulation, whereby the defendant in such action waived or agreed to waive or authorized another person to waive or agree to waive the issue or service of process in such an action shall be set aside or vacated on motion of the defendant, unless it appears that service in the usual manner was had upon him or that the plaintiff sent to him by registered mail at least seven days before the entry of such action a notice of his intention to enter the same on said day and at the time of entry filed an affidavit of giving notice as aforesaid, which affidavit shall be prima facie evidence of the giving thereof. Any stipulation in a contract, promissory note or other instrument, or in any memorandum or writing relating thereto, whereby a party thereto agrees to confess judgment in any action which may be brought thereon or authorizes or agrees to authorize another person to confess judgment as aforesaid shall be void and any judgment by confession taken in pursuance of such a stipulation shall be set aside or vacated on motion of the defendant. When a judgment is set aside or vacated under the authority of this section, all outstanding executions issued thereon shall be stayed or superseded without security."
This looks pretty good – at first glance. One might think that a Massachusetts contractor would be protected by this statute which is, after all, a Massachusetts statute. Unfortunately, the issue isn't quite that simple. The GIA might specifically provide that the law of another state might govern indemnity issues either procedurally or substantively or both. Choice of law issues – namely, when the parties to a multi-state activity specifically indicate what state's law will apply - will govern legal questions, unless there is a serious public policy issue being affected (which, in itself, is another complicated legal question.) The law has another set of principles called 'conflict of laws', which details what state's procedures and substantive laws might apply in a certain situation. In some situations – and in some states – the law of where the contract is to be performed will be applicable. In other situations, the law of the state in which the last act necessary to create the underlying contract occurs will apply. In these discussions, this would be in what state the GIA was executed. Hey, if this were easy, anybody could do this!
While this appears supportive of indemnitors' rights, one has to understand that other clauses in the GIA can invalidate this statute. For example, of the parties agree in the GIA that the laws of another state recognizing confessions of judgment are applicable, than this particular statute may not have any application. Our experience is that contractors interested in a bonding line sign a whole variety of documents necessary to establish it and a GIA is only one of those documents and quite often, contractors (and their spouses) sign these agreements without even reading them. I have attended any number of real estate closings where the homeowners' eyes were glazed over, kind of like a Krispy Kreme donut, which, if you haven't noticed, is not that available anymore in the Commonwealth of Massachusetts. Let's be brutally honest here. More often than not, a contractor might sign a document once in a while that it either doesn't understand or, perhaps, might be something it didn't actually completely read. I'm sure that this only has happened once or twice . . . .
Thirdly, it is important to understand that the surety is not interested in any prolonged litigation. This is for two reasons. First of all, particularly in this state, if they litigate on an issue, there is every possibility, even likelihood, that they are going to lose. For better or worse, I couldn't tell you the number of times I have appeared before a judge representing a surety where the judge says 'why isn't the insurance company paying'? This is completely irrespective of whatever the merits of any particular case might be. Secondly, they want to be able to continue to write bonds in Massachusetts and an excessive number of complaints to the Division of Insurance might mean that they might lose their ability to write insurance/surety business in this state. This happened, in my own experience, to Balboa Insurance Company twenty years or so ago where the Division of Insurance received too many complaints concerning the handling of claims against the insurance policies of cab drivers. (I handled their bond claims for years and didn't even know they insured taxi drivers!) Balboa was a division of AVCO Financial Services, a pretty large company. Bad things happen to people, both big and small. (I suspect that you might have already had some inkling in that direction . . . . .)
Fourthly, if, for any reason, you decided to place your company in bankruptcy, this may not be sufficient. Provided that your surety has not made financing statements based on the underlying security agreement (the GIA), your company's liability to the surety is probably dischargeable in bankruptcy. Meaning, that if you take the appropriate legal actions, your company may no longer owe the surety the amount of its indemnity claims. This isn't, however, the same thing as meaning that individual indemnitors are excused from their own personal indemnity obligations. For them to be released from their obligations under the indemnity agreement, they would probably also have to file bankruptcy themselves as individuals, which has a number of unfortunate aspects, which are more difficult for individuals than such are for companies. In other words, if you ever think about placing your company in bankruptcy, be sure to ascertain what the obligations of the individual owners might be. In the final analysis, one company can be replaced by another 'company' virtually overnight, even where the second company has a name quite similar to the name of that company being replaced. The obligations of individuals are a lot more complicated. So, when a corporate (or LLC) bankruptcy is contemplated, it is always of paramount importance to determine what the obligations of the individual personal indemnitors/guarantors/liable parties might be. Principally, these will include three things: (a) personal indemnitors on the bonding line; (b) personal guarantors on the line of credit, and; ( c ) those individuals who are likely to be liable for the payment of certain taxes, such as payroll taxes. These three things - at least - are things that have to be coldly considered before placing any entity in bankruptcy. If a company becomes judgment-proof – it doesn't have any assets against which a recovery can be had – who cares? Remember that a corporation under the law is an 'artificial person'. Meaning, it isn't a corporation which tucks your children into bed every night. The only things that are truly important about companies are the individuals who might be left on the hook if and when the company ceases to have an effective existence.
Ladies and gentlemen, you have more than one suit to wear, don't you? The fact that you have two or more doesn't mean that you don't like one over the other. S*** happens. If you have to form a new company, believe me, this is easy enough. What is a lot more complicated is taking care of your potential individual and personal liabilities.
Fifthly, a thing to keep in mind is that having a pending (or past) bond claim against you may make you less 'marketable' in terms of arranging for subsequent bonding. It is customary for bond principals to look for new sureties and new terms as they become available or necessary. Changes might be made to take advantage of another company's more favorable premium rates. A change might be necessary because of negative changes in your financial position, which might mean you no longer meet the underwriting requirements of your current surety. Conversely, at such time as your company may have expanded beyond the requirements of the substandard market, you might be entitled to a better deal in the standard market. One of the main reasons changes are made is because your current surety may not give you what you consider to be an adequate single bond limit or total program. Meaning, you might need more than, say, a maximum payment and performance bond of one million dollars with total outstanding bonds not exceeding in the aggregate four million dollars. Something I have seen in the past is that when surety markets are particularly competitive, construction companies with very strong financials might be successful in taking some of its principals off of the GIA as individual indemnitors. For a number of reasons mentioned elsewhere in this article, this is highly desirable! Experience over more than thirty-six years in construction law has taught me that few, if any, construction companies will exist indefinitely. As individuals, we will not exist indefinitely! Remember the warning that most employees are only a missed paycheck away from being homeless? Having signed the wrong job for possibly the wrong money with the wrong people can have that same effect with companies. I can think of any number of examples to prove this. Not being personal indemnitors is something that all company owners should shoot for, although few will probably achieve this, particularly in these difficult financial times.
Since most applications for new bonding from a new carrier include questions as to whether or not you have pending claims - or have ever been in claim - the answer 'yes' might conclude your new bonding opportunities right there in a very negative way.
Sixthly, going into 'claim' may give some sureties the right to demand collateral for the full potential amount of the claim plus anticipated legal costs. And, a failure to provide the collateral may itself become a breach of the GIA, thus triggering other surety rights, such as an immediate assignment of your various subcontracts. And, it doesn't take very much to go into 'claim'. It can be as simple as a payment bond claimant or the obligee on a performance bond (i.e. the owner on a general contractor's bond) writing to the surety making a claim. My experience has been that many companies don't have the ability to post collateral in large amounts. In tight economic times, every available dollar has to be devoted to serve your company's interests, not in helping sureties being collateralized against losses, many of which they may never experience.
Seventhly, with a pending payment or performance bond claim, your existing surety may refuse to issue you bid bonds for new jobs. The fact that you may have a bonding line with individual bond limits and program bond limits does not mean that the surety necessarily has to ever give you a bond. Most GIA's specifically state that whether a bond is executed or not is solely the surety's call. For public works/public building contractors, an inability to post a bid bond can be simply disastrous. And, since the fundamental reason for requiring bid bonds is for some proof to a potential obligee that it has reasonable assurance that you can produce payment and performance bonds, if you can't get your surety to give you a bid bond, you won't be able to get them to give you payment and performance bonds. This is, in a four letter word, trouble.
Eighthly, if you litigate with your surety, in all likelihood, you will lose. I am sorry to be especially brutal here, but this is the truth. And, I say this because the GIA is almost completely one-sided, as is any other arrangement for credit. A surety's claim checks are usually prima facie (on its face) evidence of liability and damage. And, this is because this is what most GIA's say. You have already given the surety in the GIA the right to settle all claims as it sees fit. (This is typically found in paragraph two or paragraph three of the numbered paragraphs of the GIA.) In many instances, you will have given the surety an assignment of your subcontracts if you go into claim, as this is what the GIA provides for. In fact, you have already agreed in advance - by executing the GIA - that you will pay the surety's legal fees for its having to sue you for indemnity, along as with regard to the legal fees it incurs in defending against payment and performance bond claims. Since claims of lack of good faith aren't really even a legal defense in indemnity claims, it will be an unusual situation where a principal (and its individual indemnitors) will have much luck in litigation with its surety. A great many of these cases don't even last long enough to go to trial. They are resolved at the summary judgment stage of the litigation, before a trial takes place. (Articles about the litigation process can be found at the website www.sauerconstructionlaw.com., which explain that a 'summary judgment motion' is, in reality, a trial by affidavit, which can occur before the trial by many months.)
3. Negative DCAM and other ratings and the determination of 'responsibility'.
It is only common sense to say that if your company is defaulted or terminated on a public job which provides for the rating by owners and general contractors of general contractors and subcontractors, your being defaulted - or terminated - is likely to lead to a bad review on that particular job.
Let's look at only one aspect of the ramifications of this. The public bid process allows, particularly with regard to general contractors, for owners to look at actual bidders on their projects to see if they are 'responsive', 'responsible', 'eligible' bidders. 'Responsive' simply means is your bid responsive to the bid solicitation: it is complete and it is not a counter-offer (including additional terms or not including all required terms.) 'Eligible' simply means that your company meets the minimum requirements of the bid solicitation. As an example, if the bid solicitation requires five jobs of a similar nature or size and you can't prove either one, your bid may be declared to not be 'eligible'.
C. 149, s.44A defines the word "responsible" for bid law purposes to mean:
" Responsible" means demonstrably possessing the skill, ability and integrity necessary to faithfully perform the work called for by a particular contract, based upon a determination of competent workmanship and financial soundness in accordance with the provisions of section forty-four D of this chapter".
In the case of Utility Contractors Association of New England, Inc. V. Commissioners of the Massachusetts Department of Public Works, 5 Mass.L.Rptr. 17, 153 L.R.R.M. (BNA) 2297 Superior Court of Massachusetts, (1996), the Court said on page seven:
"The competitive bidding laws, with which MHD must comply, require awarding
authorities, such as MHD, to award contracts to the "lowest responsible and eligible bidder ..." G.L. c. 30, § 39M. The phrase "lowest responsible and eligible bidder," in turn, incorporates the requirement that the bidder be "able to furnish labor that can work in harmony with all other elements of labor employed or to be employed in the work." G.L. c. 30, § 39M(c). [FN4] Additionally, the statute provides that "the awarding authority may reject any and all bids if it is in the public interest to do so." G.L. c. 30, § 39M(a).
MGL. c. 39M provides, in part:
"(c) The term "lowest responsible and eligible bidder" shall mean the bidder: (1) whose bid is the lowest of those bidders possessing the skill, ability and integrity necessary for the faithful performance of the work; (2) who shall certify, that he is able to furnish labor that can work in harmony with all other elements of labor employed or to be employed in the work; (3) who shall certify that all employees to be employed at the worksite will have successfully completed a course in construction safety and health approved by the United States Occupational Safety and Health Administration that is at least 10 hours in duration at the time the employee begins work and who shall furnish documentation of successful completion of said course with the first certified payroll report for each employee; (4) who, where the provisions of section 8B of chapter 29 apply, shall have been determined to be qualified thereunder; and (5) who obtains within 10 days of the notification of contract award the security by bond required under section 29 of chapter 149; provided that for the purposes of this section the term "security by bond" shall mean the bond of a surety company qualified to do business under the laws of the commonwealth and satisfactory to the awarding authority; provided further, that if there is more than 1 surety company, the surety companies shall be jointly and severally liable." (Emphasis added).
What these things mean practically is that an owner evaluating general contractor bids is entitled to - possibly required to - do some 'due diligence' in evaluating bidders. The Massachusetts public bid procurement laws - particularly with regard to filed subbidders on building projects - specifically contemplate that often the parties to a public construction project may not know much about each other. So, one of the architect's duties in evaluating bids is to sniff around and see what they can find out about the various bidders. There is no specific format for doing so: at least, as far as I am aware of. But, typically, and as we would do as consumers, they may look at internet postings to see what stories there might be about a bidder. I once won a public bid protest as to a seven figure job, in part, because I was able to discover on the internet that the protesting party had a significant number of prevailing wage issues and other regulatory issues. That initial investigation took about fifteen minutes. Home improvement contractors are rated on Angie's List, which ratings can be especially devastating in that the contractors themselves are not able to participate in the rating process (or so they say). Also, since most bid forms include references to previous owners and previous jobs, the usual architect will check your references on previous jobs, as well as contact owners that might be referenced on your bid form. This might be the form of research most likely to be taken advantage of.
In other words, if anything is done, checking your work on previous work as you have identified can only be expected to occur.
Here are three important things to know. First, there is substantial statutory protection to those doing contractor evaluations. Namely, there is little chance for personal liability providing such investigations are undertaken in a business-like manner. Secondly, determinations of the responsibility of bidders are not issues that the Attorney General will get involved with at the bid protest level. There is substantial case law that says that determinations of who is the lowest responsive, responsible and eligible general bidder are factual determinations by the owner, which will not be overturned unless they are arbitrary, capricious or illegal, which is nearly an impossible test to meet. Thirdly, in the vast majority of cases involving claimed owner bid errors, the only damages that are available are bid preparation costs, which are nominal and will be nowhere near what the cost of any litigation contesting this might be. And, nearly all of the parties whom you might sue with regard to a bid error are completely aware of this.
Bottom line, wherever possible, more knowledgeable contractors will try to avoid terminations or, at minimum, manage them.
IV. Avoiding terminations.
A lot of the following is simply common sense. Do the job you were contracted to do. If mistakes are made at your level or at subcontractual levels, they need to either be rectified or other strategies, such as the offering of credits or additional work, should be considered. Unless the plans and specifications will not produce an adequate and sufficient result - in which case, hopefully, you sought an RFI before bidding or refused to bid the job - simply doing what the architect and owner want you to do is usually a sufficient thing to do.
The following cannot be overly-emphasized and should be followed on any job. Keep good daily reports. Take a copious amount of pictures and videos demonstrating progress and lack of progress of the work on a weekly basis. If there is a changed condition or differing site condition, be sure to take extra pictures and to give such written notices as the contract might require to preserve your right to potentially make a claim. If you are coming up on a time deadline for substantial or final completion, make sure you have, at minimum, requests for additional time pending when time is overrun. Act reasonably. Remember that if your subcontractors make errors in their performance of the work, typically, the general contractor is responsible for these with regards to the owner, as the general owns the entire work. Act reasonably. Be pro-active in attempting to solve your project's problems. My experience has been that terminations, like divorces, are not something that happen overnight. Like divorces, terminations frequently occur over a period of time and are only exercised once the owner has made the determination, whether right or wrong, that the contractor does not have a sufficient enough interest in rectifying its problems. Make sure you put in writing confirmations of certain key steps in the construction. For example, if the contract says you are to use structural fill as a unit price item and the owner says it can't afford it, make sure your objections are tactfully, but forcefully, stated in writing. In some circumstances, refusing to do something that you know won't work might be the best strategy. And, by any chance, did I remember to state that you should act reasonably?
Court is all about things that are in writing. Cases are tried several years down the road and many of the employees who knew of the situation may no longer be available or willing to cooperate at the time of trial. Memories fade. Sometimes, it seems that whichever side is best at presenting its arguments - whether true or not - is the party that will win. Since many contractors don't like writing - and/or are just plain lazy, which is often the case - there is a tremendous tendency to try to rely on what you said rather than what you wrote. Most of the time, this is a losing strategy because you have placed yourself in a position where the finder of fact has to determine what you said at any particular point in time. With an email or a fax or a letter, this is not problematic. But, without these, you may be in a world of hurt, completely irrespective of how good your lawyer might be.
Your written record has to be roughly equivalent to the written record of your contracting party. A failure to do so is a recipe for disaster. Remember, that in the Catholic Church – as I (a heathen Protestant) understand it – sins of omission and commission seem to be considered similarly, more or less as equals. For otherwise competent contractors, one of the most egregious things that contractors do is to not put things in writing. They may not have the contract in writing (which, usually, can mean you have no mechanics' lien rights) or completely in writing or in writing enough. I am reminded of a significant joint venture of two large subcontractors who came to an oral agreement on the beach in Florida more than half in the bag late one night during a trade convention. Suffice it to say, in subsequent litigation, the sufficiency of that agreement was not, shall we say, helpful for either side.
Sometimes, there are significant changes in the job which one party may just confirm over the phone. But, once that 'change' leads to lack of payment or termination, the absence of that writing might be the most important fact in subsequent litigation. I have some limited good news. That is, that in recent years, Massachusetts has enacted legislation that provides that for a lot of things, email communications are essentially the same thing as written communications. You can send emails from your phone, your tablet, your laptop and your computer. If you don't do so, when you should, you are only hurting yourself. Listen to me. If you don't act with common sense when things are happening, the best lawyer in the world may not be able to make up for deficits in the record down the road.
Construction lawyers throw snowballs for a living. But, as the contractor, it is your obligation to supply the snow. If you don't provide snow, our snowballs will not be that effective. As an amateur Bible scholar – one who has read the Bible six complete times – I think often about John the Baptist. He wore camel's hair clothing, a leather belt and he lived in the desert eating locusts and wild honey. This does not sound like something that many individuals would see as being highly desirable. Myself, I would prefer the verdant greenery of New England with forests and open green places. I am not a skier but a lot of folks are. Even for myself, looking at pictures of New England farms with fields covered with snow, smoke coming out of the chimney of an old New England farmhouse is quite comforting. Certainly, being on the ocean in summertime is relaxing, curative. (That is, assuming there aren't a lot of great whites swimming too close to shore!)
Yet, John the Baptist was the progenitor for the Christ, a figure of infinite importance. His mother, Elizabeth, and Jesus' mother, Mary, were cousins. He was a 'rabboni', which in Hebrew means 'teacher'. Some folks might find that his conduct was weird. In a very small, hardly non-comparable way, for more than twenty years I have tried to assist my industry in my writings and with my seminars in leading it to the promised land of profitability. But, it can only be a promised land if you do what legal sense and what business sense defines as being sensible. Some might say that John the Baptist was weird. But he, like I – although in no sense even remotely comparable to him – was a teacher. And, when students don't do what they should – when they don't follow the lesson plan – we teachers get frustrated! (Of probably little importance, he and I have the same name, although we spell it differently!)
Read this article and realize that a default or termination can be a company-ending event and, therefore, sometimes extraordinary efforts may need to be taken. If you see that the project is leading to a default or termination, make sure that you advise your bonding company of the project's problems in advance, sending them a comprehensive letter with daily reports, pictures and contractual and legal arguments supporting your position. It is a pure rookie mistake to let the first letter to the bonding company come from the obligee. Since your surety is not interested at all in getting involved with a dispute and spending money with regard to such a dispute, trying to get the surety 'on your side' earlier rather than later is highly desirable. It's actually quite necessary. A surety's rights, defenses and obligations are quite similar, legally speaking, to those of its principal. There are some differences. First, the surety is a regulated industry and is subject to various insurance company rules, statutes, regulations and cases. Also, a surety will have certain – usually, limited – personal defenses that are not necessarily as important – or important at all – with regard to the principal. For example, on a public payment bond claim or suit, a failure of the claimant to sue within one year from when it last worked may actually end the surety' potential exposure, even though the claimant can still sue its contracting party for a period of time in contract for between six and twenty years. Again, listen! Contacting the surety within the year will not be sufficient compliance. You have to sue the bond. That's not because some lawyer somewhere might want the work. It's because this is what the statute requires!
Here's an important thing to keep in mind. Do not ever perform your work in violation of regulatory codes (i.e. electrical or plumbing) or against whatever the current trade usages, customs and standards are in the industry for your trade. If you do so, irrespective of whatever pressure is put on you by your customer, you are not likely to be successful down the road in litigation. An example. I had a job some years back where a paving contractor was going to pave a Walmart's parking lot. A site guy had to get the parking lot ready to receive paving. This work was done wrong and in a shoddy and insufficient manner. The site guy threatened litigation and other dire consequences against the paving guy if he didn't simply pave the lot as is was, because Walmart was exerting a lot of pressure to get the store open by a specific date. (What else is new?!)
I reviewed with my guy what was said earlier in the last paragraph. Namely, I said that if we paved the lot and it prematurely failed - as it was likely to do with an improper base - by that time, Walmart would be looking at the paving contractor alone, threatening dire consequences if the work was not redone. And, I told my guy that we might see claims for loss of business and business interruption that would make the amount of the paving contract nothing more than the price of a cheap appetizer before a very expensive dinner. And, I pointed out that if the deficiencies in paving contributed to any other form of property damage or personal injury, there could be tort claims (claims for property damage or for personal injuries) made, in addition to contract claims. My guy refused to do the work and the site guy sued. Four years later, the site guy dismissed his suit with no payment made by the paving guy.
Some law cases may not be capable of being prevented for any number of circumstances. Here is one thing that you must keep in mind. For any contractor to successfully sue on a contract, he/she/it must be able to demonstrate that the contract was substantially performed prior to suit or would have been substantially performed prior to suit had not the other contracting party prevented further performance by its interference or actions. Here are what the Massachusetts cases say:
Contractors cannot recover on the contract itself without showing complete and strict performance of all its terms. Andre v. Maguire, 305 Mass. 515, 516, 26 N.E.2d 347 (1940). Cf. J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 794, 494 N.E.2d 374 (1986).
This legal principle is referenced in the case of Handy v. Bliss, 204 Mass. 513 518-519, 90 N.E. 864 (1910). As stated by the Court, the general principles in construction cases are:
"To entitle the plaintiff to recover in a case of this kind there must be an honest intention to perform the contract and an attempt to perform it. There must be such an approximation to complete performance that the owner obtains substantially what was called for by the contract, although it may not be the same in every particular, and although there may be omissions and imperfections on account of which there should be a deduction from the contract price. It is not necessary that the work should be complete in all material respects, nor that there should be no omissions of work that cannot be done by the owner except at great expense or with great risk to the building. There may be omissions of that which could not afterwards be supplied exactly as called for by the contract without taking down the building to its foundations, and at the same time the omission may not affect the value of the building for use or otherwise, except so slightly as to be hardly appreciable. Notwithstanding such an omission, there might be a substantial performance of the contract."
So, if you know or suspect you are going to end up in litigation with your contracting party for whatever reason(s), a court is going to be looking to see whether or not you 'substantially performed' your contract. If you didn't, it's likely that you may have difficulties with your case. In so many situations, if it is going to take a piece of extra work to get the job done, doing so might be in your very best interests, pursuing the costs of extra-contractual work as a claim down the road, complying with all of the notice and other provisions of your contract. Once the court has found that you substantially performed your contract, it will be far more receptive to consider your claims for a changed condition.
Some of you may remember drive-in movies. Those wonderful places where you could go and see a couple of movies for not much money, have some of those greasy egg rolls and an opportunity to be with your significant other for four hours in, what we might say in the law, might be considered to be a comfortable venue.
Would you have wanted to go to the drive-in with your girl and her mother in the back seat? Of course not! But, that is what a bonded project is: amenage a trois. Meaning, the fact that, as a general, you have to deal with an owner, and an architect, and the architect's engineers, and subcontractors and your own bonding company makes negotiating your way successfully through a difficult job complicated and often quite difficult.
In some situations, where additional work may be required, do that work, possibly under protest. That way, the job is concluded, there shouldn't be a termination and a lot of the expenses and negative ramifications of a termination can be avoided. Keep the following in mind. As indicated above, you have to be able to demonstrate to the court that you substantially performed your contract to the point you were able to. (If you get terminated for an improper reason prior to substantial performance, that might not necessarily work against you.) Now, here's one of the most important things for you to take from this article. If I were a Baptist preacher - something I have considered being at various times! - this would be the point in the sermon where I would say: "Now, listen!" Judges, and, particularly, arbitrators, are nowhere near as smart and experienced as you might think (or want them to be.) On top of that, particularly with judges, they don't like construction cases. They are very technical, too complicated and take way too long to try. However, thirty-six years of experience in trying cases has taught me that in many situations, a judge is going to be looking at 'who acted the most reasonably?'. If you can complete your contract in some kind of satisfactory way and the correspondence trail/documentary evidence indicates that you were the only party who acted reasonably or the party which acted most reasonably, chances are, everything else being equal (i.e. you submitted your claim to the owner in the manner and time frame indicated by the 'changes' and 'claims' clauses in the general conditions and supplementary general conditions with appropriate documentation), you've got a pretty good shot at winning your case. Why? Because you were the only one who seemed to act reasonably. They say that a word to the wise should be sufficient. Yo?!
You know that the architect will almost always refuse to take responsibility for an issue pertaining to an under-design, either on the architect's part or on the architect's engineer's part. Owners, particularly smaller municipal owners, tend to be inexperienced (dumb) as to contractual, legal and bid law matters. At least initially, they tend to listen to the architect, for better or worse, as this is the party they have had the longest relationship with. Candidly, many of their lawyers are not construction lawyers and, therefore, may not be giving the best possible advice. (I don't do wills, don't do DUI's and don't do murder defenses, unless it is for a very good client for which I might be a consigliere!) If a bunch of parties appear before the court and you were the one who acted with the most common sense, this is not going to hurt your chances at trial! And, keep in mind that only about one percent of all superior court civil cases go through a complete trial. Almost all lawyers are required to go through at least seven years of college to get licensed to practice. (In my case, it was nine years. Hopefully, this was not because I was unusually dumb!) And, while many lawyers you have met have less than completely reasonable and pleasant personalities, not too many of them are all that dumb. Which means that, eventually, the better lawyers will be analyzing the evidence and the legal precedents before a trial is commenced and will not be putting their clients through trials that they are not likely to win. For those who do otherwise too often, their clients tend to be spelled somewhat differently in that currentclients may later be referenced as ex-clients! Adding to this, a good many lawyers are like anyone else trying to make their way through the world. Namely, just like you, they are trying to do their jobs. And, if the evidence suggests that there is, more likely than not, a clear winner and a clear loser, at some point in time, they're likely to figure that out and advise their clients accordingly. I probably don't try as many as one case a year. It's a grueling, expensive process and, more likely than not, the case will settle at some point in time for cases and clients properly prepared.
If all of the above has not been successful, in certain circumstances you might want to take legal action against your contracting party and your own surety before you get terminated. In other words, sue first! Why? A bunch of reasons. First of all, you get to pick the county in which your case is filed. If I want to sue a Cape Cod town, I don't want to do it in Cape Cod (most of the time) because the jury pool will mostly be taxpayers not anxious to increase their own taxes and the payment of contractor claims might have some effect on that. Secondly, even though from a judicial standpoint claims (by plaintiffs) and counterclaims (by defendants) are supposed to be considered equally by the court, there might be some tendency by a court to consider the plaintiff's claims first. After all, civil litigations are commenced by the filing of the plaintiff's complaint, which is the first docketed item in any case. Also, by suing first, in some situations, you can pick the track the case is assigned to. Superior court cases can be assigned to the accelerated track, the fast track and the average track. Deadlines for completing certain preliminary aspects of the case along with ultimate case resolution dates are different - shorter or longer - depending on what track the case is assigned to. Construction cases usually will be assigned to the average track, which means no trial before three years (usually, four or more years) from the date the case is filed. Cases assigned to the fast track can be reached for trial in two years or less. For tactical and strategic reasons, being able to pick the track might have a significant impact on the litigation and its possible success. Some municipalities don't especially want to read about their cases in the local press for extended periods of time!
As they say, timing in life is everything. Example. I had a certain case where a subcontractor was suing a general contractor and its surety for about 125k on a payment bond case and I had to attend a pretrial conference at which the trial date would be set. I arrived at court early and spent some time schmoozing a certain clerk for a while. When the time came to have the case actually assigned for trial, the plaintiff's attorney was looking for trial in the next three months or so. I said to the clerk, 'well, this is a construction case and I know how the Court loves construction cases!'. The case was assigned for trial seven months down the road and, by then, the subcontractor had closed its doors. The case was subsequently settled by me with the plaintiff's (successor) collection (not construction) lawyer, who took twenty-five grand for the case. That saved my guy as much as one hundred thousand dollars! Did I receive my client's undying gratitude? Perhaps, we should go on to the next paragraph at this time!
Now look at the following sentence, a saying, if you will: 'the quick brown fox jumps over the lazy dog.' Do you want to be the dog? Or, wouldn't it be more sensible and preferable to be the fox? In the final analysis, the dog is often a lot bigger than the fox. But, if the fox is a lot smarter than the dog, wouldn't it be better to be the fox?
Now, legal action may be something different from (or more than) the usual claims for breach of contract and for unfair and deceptive trade practices. You might file, in addition, an action for declaratory judgment. And, what is that (you might say)? This is defined as follows in the General Laws:
M.G.L.A. 231A § 1. Power to make declaratory determination; jury questions
"The supreme judicial court, the superior court, the land court and the probate courts, within their respective jurisdictions, may on appropriate proceedings make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen and is specifically set forth in the pleadings and whether any consequential judgment or relief is or could be claimed at law or in equity or not; and such proceeding shall not be open to objection on the ground that a merely declaratory judgment or decree is sought thereby and such declaration, when made, shall have the force and effect of a final judgment or decree and be reviewable as such; provided, that nothing contained herein shall be construed to authorize the change, extension or alteration of the law regulating the method of obtaining service on, or jurisdiction over, parties or affect their right to trial by jury. When a declaration of right, or the granting of further relief based thereon, shall involve the determination of issues of fact triable by a jury as of right and as to which a jury trial is duly claimed by the party entitled thereto, or issues which the court, in accordance with the practice of courts of equity, considers should be tried by a jury, such issues may be submitted to a jury in the form of questions, with proper instructions by the court, whether a general verdict be required or not." (Emphasis added).
What does this mean? What this means is that a court has statutory authority (and obligations) under some circumstances to interpret a contract to determine the rights and obligations of the different parties. Why might this be of value? This might be of value if such an action is already filed before a termination has issued. Some owners may take the position that the further disposition of the contract - including, whether the general contractor should be terminated or not - is a matter for the court. Therefore, in some circumstances, having a prior pending action before the owner actually terminates you may tend to prevent the owner from terminating you because it thinks that it can't or that it shouldn't.
Another idea to assist you in dealing with your surety. Before your surety has to make a determination as to whether or not it will intervene in your performance bond claim situation, sometimes it may be of value to either: (a) file a declaratory action involving your surety as to its rights and obligations under a surety bond and/or: (b) seek to get a preliminary injunction against your surety's taking a position adverse to your own as to a potential performance bond claim.
Why would either be useful? Well, as to the declaratory judgment action, again, and for some of the same reasons applicable to an owner's contemplating termination, if the matter has been already submitted to court, a surety might be less inclined to take action on its own against your interests if there is a pending court action. About one hundred years ago, there was a maxim (or wise saying) of suretyship to the effect that 'surety should not be a volunteer.' As the thinking went, if a surety were to take action on its own without the requirement of a legal judgment or provable obligation, a surety might forfeit some of its rights against its principal seeking indemnity. This probably has a lot less significance these days, although the surety industry seems to favor a lot of these older rules.
The common law - judge-made decisions - vary from state to state. Suffice it to say that this maxim of suretyship as above-identified has a lot less support one hundred years later. Still, for some sureties, it might still have some remaining emotional appeal.
Additionally, there are some circumstances where a surety's options or proposed course of action may not be clear to it. After all, as a matter of law, it has its principal's claims and defenses as its own. And, frequently, such issues are complex, factually and/or legally and, in litigation, it is rare for each party to thoroughly understand the case, particularly during its earlier stages. At the same time, there may be statutes, such as there are in Massachusetts, which don't let the surety simply straddle the fence for an inordinate amount of time without possibly suffering some negative consequences as with bad faith claims or even losing the ability to write further business in the state.
So, here's an idea. If in the discussions between the principal and surety the surety is not ready to foreclose its principal's options, a possibility might be 'friendly' litigation between a principal and a surety. Specifically, a principal might 'sue' its surety seeking to get injunctive action against the surety's taking an adverse action, such as engaging in completion activities against its principal's interests. Now, if the principal and the surety are the only two parties to the litigation and the surety decides to not, uh, vigorously oppose the requested injunctive relief, a court might grant such relief because, uh, there is no one really opposing it. This might offer the surety some protection against possible bad faith litigation by the obligee down the road due to is failure to take action. After all, if it has been enjoined from taking certain actions, what other options were available to it?
V. You have been terminated.
First of all, let's not panic. After all, at some point in our personal lives, a doctor is liable to tell us that we have cancer or serious heart disease. Remember what pilots do when something unusual or unplanned happens – frequently, with a lot of buzzers buzzing and warning lights blinking? They ask: 'are we still flying?' And, if more than fifty percent of American marriages end today in divorce, when one's spouse makes it a point of saying that 'we need to have a talk', often times, this may not be a good thing! And, for virtually all IRA and investment statements over the last four or five years, opening such monthly statements without substantial intestinal fortitude – or a good drink – may be problematic. In all of these prior examples, you are still breathing, aren't you? So, no panic! As they say, 'life's a b**** and then you die'. But, that does not necessarily mean that this will be today. They say that it isn't over until the fat lady sings. A lot of these fat ladies died years ago. And, if they didn't? S****
them if they can't take a joke!
Bringing about an effective, contractual, legal termination is not the easiest of things to do, particularly when there are a variety of general conditions and supplementary general conditions that must be dealt with or fulfilled before this can be accomplished. Remember the expression that 'revenge is a dish best served cold'? Often, people will terminate others with some measure of anger, a condition that doesn't often reflect human beings at their thinking best. Also, oftentimes general contractors will terminate subcontractors, in part, because they feel as general contractors, this is their right. Since terminations are quite often likely to lead to litigations, better contractual schemes have a series of steps that must be followed before such can be accomplished. There might be a variety of steps that must occur before a termination can happen. Does your contract provide for 'cure notices'? Were you given this opportunity? Does your contract require that before there can be a termination, a third party – such as an architect – has to certify that there are grounds for termination? Did that happen? Down the road, a court, interpreting a contract, may (hopefully, will) look to see whether each such step was taken. If all of the steps were not taken, then the termination might not be legally effective and might actually be a breach of contract on your contracting party's part. (Be sure to make sure that your termination is one 'for cause' rather than one 'for convenience' as the latter usually has fewer preconditions.)
One last word. I'm a great believer in the value of maxims (wise sayings). One such is that 'a word to the wise is sufficient'. A lot of ideas have been presented in this article. And, once you have considered them, there are a great many more than can be found in the various articles to be found at www.sauerconstructionlaw.com or, even, in giving us a call. Why not take advantage of resources that are being provided to you by someone whose entire professional life has been involved with these issues? You haven't been charged anything up until this point, have you? Someone who is trying to help you without charge? (As such, someone who 'they' might say could be a dope? But, possibly, an intelligent dope!) After all, as a variety of entries in Scribbles has said, someone who might have gone to both Yale University and Harvard Law School? (Sort of!)
Hopefully, you have been able to implement some of these strategies discussed above prior to termination to better position yourself in future legal activities, either with the obligee or with the surety or with both. Perhaps these strategies came to you too late. Or, perhaps, at the time, they weren't taken for whatever reason. None of God's children is perfect! (Some of us may be less imperfect than others. I have been advised that I am not in that more favored group!)
At this point in time, you need a good construction lawyer, which would be someone who does this type of work all of the time and who has no interest in either writing wills or helping fighting couples get a divorce. The situation will likely be complex, factually and/or legally, and hopefully your attorney won't be learning how to handle your matter for the first time on your nickel. (Inflation being what it is, this might be your dime.) Whether you get a Texas lawyer or not, hopefully, whomever you pick will not be attending the rodeo for the first time!
We hope that this article has been useful to you. At Sauer & Sauer, we only represent clients on construction issues. We would welcome the opportunity to compete for your business.
We offer a variety of products that are not solely hourly-based fees to assist you in managing your business. If we were able to be of assistance to you in writing this article, good! You might want to look at the substantial writings on our website – www.sauerconstructionlaw.com – which were generated to help you. Be honest, now! Your current lawyer hasn't been this helpful, right, with no expectation of payment? Imagine how much additional assistance we might be able to provide you once we get to know you!
(Please note that these materials are not intended as being specific legal advice but only as background materials for general educational purposes. For any legal problem you have, consult with counsel of your own choosing At Sauer & Sauer, we are always looking for new clients, such as quality materialmen, subcontractors, general contractors and owners. We have some 'flat fee' schedules for new clients on certain first files and for certain services, such as a monthly review of receivables for the purposes of deciding what legal action, if any, is warranted.)
Jonathan P. Sauer
Sauer & Sauer
15 Adrienne Rd.
E. Walpole, MA 02032
We are in the process of opening a satellite office in Boston this month!
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